Contesting A Will

A person can contest a will in New South Wales by making a family provision claim. This is generally done when a family member has been left out of the will or feels they have been inadequately provided for.

Who can contest a will?

In New South Wales, a person may contest a will if:

1. They are an eligible person (See Who can contest a will in NSW? (Eligible Applicants)); and
2. They believe they have been left without being adequately provided for (adequate provision).

The court may consider their financial position, their relationship with the deceased, the size of the estate and the deceased’s relationship with other persons who are eligible to make a claim. Adequate provision is complex and difficult to define as it varies with every case.

Contesting a will in NSW

Generally, a Family Provision Claim is made in NSW if either:-

1. The deceased lived in NSW at the date of their death and owned assets in NSW; or
2. The deceased lived elsewhere but owned assets in NSW.

Eligible applicants

Persons who are eligible to make an application for provision from a deceased person’s estate are listed in Section 57 of the Succession Act 2006 (NSW).

They are:

1. The deceased’s spouse at the time of death;
2. A person who was living in a de-facto relationship with the deceased at the time of death;
3. The deceased’s child;
4. The deceased’s former spouse;
5. A person who was:
   1. Dependent (wholly or partly) on the deceased at a particular time; and
   2. A grandchild of the deceased, or a member of the household of the deceased;
6. A person who lived in a close personal relationship with the deceased when the deceased died. For example two adults may be classified as living in a close personal relationship if they live together and provide personal care and domestic support, without receiving payment or volunteering for a charity.

A parent, sibling, step-child and former de-facto spouse are not expressly listed as eligible persons. However such persons may be eligible under category (e) if they lived with the deceased and were dependent on the deceased.

Time limits

In New South Wales there is a time limit for contesting a will.

If the deceased died after 1 March 2009, a family provision claim must be commenced within 12 months from the date of death. However if it is uncertain when the deceased died, the court may determine a date or time of death that is reasonable.

There are some exceptions and in certain cases, out of time applications can be made. If an application for family provision is made more than 12 months after the date of death, you will need to show the court that you have ‘sufficient cause’. The court has the discretion to grant an extension of time if you can show that there is sufficient cause for making a late application. You must provide the court with ‘sufficient justification or excuse’ or ‘sufficient explanation.

We encourage you to make contact with our team on 1300 038 223 for a free case assessment even if you have exceeded the 12-month time limit.

How do I get a copy of the Will?

If you need a copy of a will, the first thing you should do is contact the executor or the solicitor acting for the estate. The executor is the person responsible for administering the deceased’s estate.

In NSW, the following persons are entitled to inspect or be given a copy of the deceased’s will:

• Any person named or referred to in the will;
• Any person named or referred to in an earlier will as a beneficiary;
• The surviving spouse, de-facto or issue;
• The parent or guardian of the deceased;
• Any person entitled to a share if the deceased has died intestate;
• Any parent or guardian of a minor referred to in the will or who would be entitled to a share if the deceased died intestate;
• Any person/creditor who may have a claim against the deceased;
• Any person with management of the deceased’s personal estate immediately before death;
• An attorney under the deceased’s enduring power of attorney;
• Any person belonging to a class of persons prescribed by regulations.

You should consult with a lawyer if you are having trouble obtaining a copy of the will. Your lawyer will be able to consult with the executor of the estate or begin court proceedings.

In the event the deceased died intestate (without a will), an application for letters of administration must be made.

Who pays the court fees?

In New South Wales the Judge has discretion regarding legal costs in family provision proceedings.

If the Judge makes an order for provision for an applicant, the estate will usually pay the applicant’s ordinary costs. However, if the applicant is unsuccessful and the Judge makes no order for provision for the applicant, then the Judge may order the applicant to pay the executor’s costs of defending the proceedings.

Intestacy

When a person dies without a will, they are said to have died Intestate. In some circumstances, where a person does not have a will or the will cannot be found, an Administrator is appointed by the court to distribute the estate of the deceased according to the statutory order or intestacy rules. When an administrator is appointed, the court grants what is called letters of administration.

It is the letters of administration that enables the person appointed as administrator to act as the representative of the estate. Once a letter of administration is granted the administrator distributes property in the following order:

• Spouse or de facto spouse and no children;
• Spouse or de facto spouse and children;
• Children only;
• Parents;
• Other relatives; and
• No relatives.

What if the will is invalid?

You may be able to challenge the validity of a will if you think:-

1. The deceased did not have the mental capacity to make a will;
2. The will was forged;
3. The deceased was unduly influenced in making the will; or
4. There was fraud involved.

Undue influence

Was there any trickery, force, pressure or fear involved when making the will?

If you believe that any of the above may apply to your situation, please call us on 1300 038 223

What does the court consider?

In New South Wales, a court may take various matters into consideration in determining whether to make a family provision order. Given the number of factors involved, it is very important to seek early advice on your unique situation.

According to section 60(2) of the Succession Act 2006, the evidence that a court may consider is as follows:

1. The relationship between the deceased and the applicant, if any, including the nature and duration;
2. The obligations or responsibilities the deceased had, if any, to the applicant or any beneficiaries of the estate;
3. The nature and extent of the deceased’s estate including property which is notional estate and any estate liabilities;
4. The applicant’s financial resources (including earning capacity) and needs (both present and future) and those of any other applicant or beneficiary;
5. The financial circumstances of any other person cohabiting with the applicant;
6. Any disability, whether physical, intellectual or mental, of the applicant, any other applicant or beneficiary at the time of the hearing;
7. The applicant’s age at the time the application is being heard;
8. The applicant’s contribution (if any) to the deceased’s welfare or to the acquisition, conservation and improvement of the deceased’s estate, for which adequate consideration was not received by the applicant;
9. Any provision made by the deceased to the applicant during his/her lifetime or from the deceased’s estate;
10. Evidence of the deceased’s testamentary intentions, including evidence of any statements made by the deceased;
11. Whether the deceased maintained the applicant, wholly or partly, before his/her death and the extent to and basis on which the deceased did so (if the court considers it relevant);
12. Whether anyone else is liable to support the applicant;
13. The applicant’s character and conduct before and after the deceased’s death;
14. The conduct of any other person before and after the deceased’s death;
15. Any Aboriginal or Torres Strait Islander customary law that is relevant;
16. Any other matter that the Court considers relevant. This may include matters in existence at the time the deceased died or at the time of hearing.

Can grandchildren contest a will?

There are a number of factors to be taken into consideration when a grandchild considers making a claim on their grandparent’s estate. The first thing to consider is that you need to be defined as an eligible person and to be defined as an eligible person you need to have been wholly or partly dependent on the deceased at some time in your life (s 57(e) Succession Act 2006).

When examining the case Sammut v Kleemann [2012] NSWSC 1030 Hallen J expressed general principals that should be taken into consideration when considering a family provision application by a grandchild. These principals include:

1. There is no obligation or responsibility for a grandparent to make provision for a grandchild.
2. If a grandchild’s parents had died at a young age and the grandchild was left in the care of the grandparent, in most cases, a grandchild should be provided for out of the grandparent’s estate particularly if it is shown that the grandparent was providing for the welfare and direct responsibility of that grandchild.
3. If a grandchild was to show that they cared for their grandparent this could constitute that the grandparent had a moral obligation to provide for the grandchild.
4. The payment of school fees or money given to a grandchild as voluntary support and kindness does mean that the grandparent has an obligation to the grandchild to provide for them.
5. A grandchild isn’t wholly or partially dependent on a grandparent if they had received gifts during the deceased’s lifetime whether those gifts were made regularly or otherwise for the grandchild’s benefit. There would need to be additional factors to show by the grandchild was wholly or partially dependent.
6. The support of a grandparent towards their adult child does not mean that the grandparent has an obligation to provide for the grandchild. The whole or partial dependence must be experienced directly by the grandchild.
7. A consideration will still be made as to what, if any, legacy will be received by the grandchild from their parent’s estate however this does not generally counteract any moral obligation that the grandparent has to provide for the grandchild for their maintenance, education and advancement in life.
8. The Court will consider whether the grandchild’s parent or parents have predeceased the grandparent. This fact is not to be taken on its own.

Can I contest a will if I live interstate?

If the deceased lived in New South Wales and owned assets in New South Wales, a claim can be made in New South Wales even if you don’t live in New South Wales.

The place where you live does not affect whether you can bring a claim in New South Wales. Claimants who live in states or territories other than New South Wales can make a claim, as can claimants who live overseas.

It is important that you have a lawyer who is specialised in the law of the state where you are making a claim.